Rights of EU citizens in the UK and UK citizens in the EU after Brexit

An agreement on citizens’ rights was reached on 8 December following negotiations between the UK Government and the EU (the Agreement).

Whilst this must be interpreted in light of the caveat which applies to all Brexit negotiations: “nothing is agreed until everything is agreed”, we assume that little will change in this area as a result of the negotiations in other areas.

What has been agreed?

Importantly, the Agreement is reciprocal. References below to EU citizens residing in the UK apply equally to UK citizens residing in the EU. The Agreement confirms that:

EU citizens who arrived in the UK before the date of Brexit (the Withdrawal Date) and who have been living in the UK continuously for:

five years or more will be able to apply for “settled status”.

less than five years will have to apply for a temporary residence permit. They will then be able to apply for settled status upon reaching five years of continuous residence in the UK.

EU citizens arriving in the UK after the Withdrawal Date will be able to stay in the UK until the end of a “grace period” of no less than two years, starting on the Withdrawal Date, but will then be subject to the (to be determined) post-Brexit immigration regime that the UK Government decides to adopt for EU citizens.

The Agreement also covers family members of EU citizens. The rights of family members will depend on when the citizen moved, when the family member seeks to join them, and the character of the relationship between the two parties.

EU citizens or their family members who obtain settled status may lose this status if they reside outside the UK for more than five years (although certain short-term absences are permitted).

Irish citizens will not be subject to these changes (and therefore do not need to apply for settled status to protect their current rights in the UK).

An "independent national body" in the UK and the EU Commission will monitor implementation from the UK and EU perspective respectively. UK citizens will be able to request CJEU rulings for eight years after the Withdrawal Date.

What concerns might businesses have with the Agreement?

On its face, the Agreement provides a degree of reassurance to citizens and businesses alike. However, we will need to wait until 2018 to find out whether the system will work as foreshadowed.

EU citizens who have already obtained permanent residence in the UK will need to convert that permission to settled status, increasing the administrative burden (and potentially the uncertainty) of the process.

More than 3 million applications may need to be processed - will the Home Office will be able to cope with the administrative burden?

What will the new regime applying to individuals moving between the UK and EU (and vice versa) after the Withdrawal Date look like – will it add administrative burdens on workforce planning?